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Medlaw E-Bulletin August 11, 2006
Stephen A. Frew JD, Publisher
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1. Houston Hospitals Tempt EMTALA Fate
2. CMS Ratchets Up EMTALA Pressure on
Patient "Parking"

------------------- 1 -------------------

Houston Hospitals Tempt EMTALA Fate

Houston's Ben Taub and LBJ county run hospitals have gone
to a program this month to channel patients out of the ED's
to reduce ED over-crowding and shift patients to primary
care cl incs according to the Houston Chronicle.

The "RightCare" program will use ANPs and PAs to provide
medical screening examinations to adults with low triage
classifications. Those that are not deemed urgent will be
told to go elsewhere for care or pay a $150 up-front payment
to be seen in the ED or $80 to be seen in the acute care
clinic.

IS IT AN EMTALA VIOLATION?

Many hospitals have contacted me asking whether the program
is a violation of EMTALA. The answer is that it is too soon
to tell.

If the program was triage-only, it would be a violation. If
true medical screening examinations are given (including
necessary testing) to rule out the legal definition of an
emergency medical condition, it probably meets the technical
requirements of EMTALA. The test of whether it passes muster
is the real-life application, not the theoretical assertion
that all patients receive an appropriate medical screening
exam.

Houston is not the first to try this -- UC Davis pioneered
the process which they touted as a way around EMTALA. According
to the last information I received, Davis had done away with
the program.

Hospitals in the Denver area also implemented a similar
system last year, and according to published information,
in more delays.

ARE THE RISKS WORTH IT?

Any way you slice it, a program to stop at least 33,000
patients from coming to the Emergency Department each year
is high risk.

One published study on the Davis approach concluded that 20%
of the patients who were redirected to the UC Clinics under
strict protocols should have been seen in the ED.

If those statistics hold true for Houston, that is an error
rate of more than 6,000 patients per year or 500 per month.
If even 1% of those patients had EMTALA conditions, that is
a total of 60 EMTALA violations per year. If half of those
result in malpractice claims, that is an extra 30
malpractice claims a year --And these are deliberately very
low estimates.

WHAT ARE THE ALTERNATIVES?

Houston appears to be working backwards by blaming the
patients rather than solving internal issues first. I can
tell you what the EMTALA requirements and compliance nuances
are, but it takes more than a newsletter to do that or to
offer information on the truly effective ways to reduce
diversion, lower ED waiting times, and make more money
in the ED.

That is why we are doing our EMTALA, Diversion, and ED
Through-Put seminar in Phoenix on September 19. For more
information on the program, go to the
website at www.medlaw.com/seminars.htm.

-------------------- 2 ---------------------------

CMS Ratchets Up EMTALA Pressure
on Patient "Parking"

CMS has followed up their letter from earlier this spring to
providers warning against "parking" patients with a notice
to the state enforcement agencies that patient "parking"
is to be investigated as an EMTALA violation.

Patient "parking" involves delaying ambulances from
unloading patients or keeping patients waiting on ambulance
stretchers until hospital personnel are willing to accept
care of the patient.

The "parking" issue has been rising across the country, and
appears to be based on the belief that a patient does not
become a hospital's responsibility until it "assumes" care
of the patient. That is a completely incorrect belief.

EMTALA makes the hospital responsible for the patient the
moment the patient crosses onto the hospital property with
its definition of "presents." Ignoring the presentation,
ignoring patients in the hallways, or ignoring ambulances
backing up in the drive is not consistent with CMS
requirements to promptly triage the patient, provide a
timely medical screening exam, and provide stabilizing care.

More than an EMTALA violation, it raises severe medical
malpractice concerns.

With two formal announcements in the past 120 days, I think
it is safe to predict that major citations are are on the
horizon for "parking."

Best wishes,

Stephen A. Frew JD, Publisher
PO Box 15665
Loves Park
Illinois 61132
United States